THE EASTERN CARIBBEAN SUPREME COURT SAINT KITTS AND NEVIS

IN THE HIGH COURT OF JUSTICE

CLAIM NO SKBHCV20080120

BETWEEN

TRAVIA DOUGLAS Claimant

and

[1] SHIVOUGHN WARDE

1st Defendant [2] DWIGHT WARDE

3rd Defendant [3] NAGICO

(National General Insurance Corporation) 5th Defendant

Appearances Mr Courtney Abel of Caribbean Associated Attorneys for the Claimant Mr John Cato for the 15t and 3rd Defendants Mr Denzil Hinds of the Law Offices of Sylvester Anthony for the 5th Defendant

2012 July 06 October 23

DECISION ON ASSESSMENT

[1J THOMAS J [Ag] On 19th March 2010 Mr Justice Francis Belle rendered a judgment in

this matter in favour of the Claimant Travia Douglas against the 1st Defendant Shivoughn

Warde and the 3rd Defendant Dwight Warde The learned trial also ordered that the matter

be scheduled for assessment of the damages by the Registrar of the High Court The

actions against the 2nd Defendant Javid Warner and the 4th Defendant Dominoes Pizza

Limited were dismissed with the costs to the said Defendants However the Court also

ruled that the Claimant was contributory negligent but without a finding as to the extent of

such contributory negligence

[2] In very brief outline the facts are that on 18th March 2007 the Claimant was a front seat

passenger in a vehicle driven by the 1sl Defendant and owned by the 3rd Defendant The

vehicle was involved in a traffic accident with another vehicle The Claimant was injured

and resulted in permanent paraplegia

[3] In her amended Statement of Claim filed on 22nd September 2008 the following reliefs were

pleaded

I(a) Special damages in the sum stated in the schedule attached (b) General damages (c) Damages for personal and psychological injuries suffered by the

Claimant (d) Interest pursuant to statute from 18th March 2007 and continuing at 5 (e) Costs (d) Such further or other relief as the Court deems fit

[4] On 28th October 2011 this Court gave further directions for the assessment of damages and

for the filing and service of legal submissions with authorities on or before 23rd March 2012

Such filings were only effected by the Claimant and at a hearing of the assessment on 6th

July 2012 the decision was reserved It is significant to record that in particular no

submissions were filed on behalf of the 5th Defendant

Special Damages

[5J In written submissions filed pursuant to an Order of the Court under this broad head the

contention is that the sum of $20174924 to the date of 17th February 2012 is claimed and

should be awarded

2

actions against the 2nd Defendant Javid Warner and the 4th Defendant Dominoes Pizza

Limited were dismissed with the costs to the said Defendants However the Court also

ruled that the Claimant was contributory negligent but without a finding as to the extent of

such contributory negligence

[2] In very brief outline the facts are that on 18th March 2007 the Claimant was a front seat

passenger in a vehicle driven by the 1sl Defendant and owned by the 3rd Defendant The

vehicle was involved in a traffic accident with another vehicle The Claimant was injured

and resulted in permanent paraplegia

[3] In her amended Statement of Claim filed on 22nd September 2008 the following reliefs were

pleaded

I(a) Special damages in the sum stated in the schedule attached (b) General damages (c) Damages for personal and psychological injuries suffered by the

Claimant (d) Interest pursuant to statute from 18th March 2007 and continuing at 5 (e) Costs (d) Such further or other relief as the Court deems fit

[4] On 28th October 2011 this Court gave further directions for the assessment of damages and

for the filing and service of legal submissions with authorities on or before 23rd March 2012

Such filings were only effected by the Claimant and at a hearing of the assessment on 6th

July 2012 the decision was reserved It is significant to record that in particular no

submissions were filed on behalf of the 5th Defendant

Special Damages

[5J In written submissions filed pursuant to an Order of the Court under this broad head the

contention is that the sum of $20174924 to the date of 17th February 2012 is claimed and

should be awarded

2

[6] By way of exhibits to her witness statement the Claimant provides evidence relating to two

broad heads 1 Loss of earnings and 2 Loss of clothing equipment aids and appliances

and transportation

[7] It is common ground that the rule regarding special damages is that such damages must be

expressly pleaded and proven1 The matter of the different items of special damages must

now be considered and analyzed

Loss of Earnings - Claimant

[8] It is already accepted that there is no contention that the Claimant earned EC27409 per

week EC$118775 per month and EC$1425300 per year

[9] The evidence which the Court accepts is that the Claimant last worked at her place of

employment on 18th March 2007 so that the loss of earnings would run from 19th March

2007 to the date of the commencement of the trial

[10] Under this head the claim is for 256 weeks to yield EC$7016704 with respect to the period

19th March 2007 to 12th February 2012 But the significance of the latter date is not clear to

the Court However the rule is that the damages for loss of earnings run from the date after

the incident to the date of the commencement of the trial being 23rd November 2009

Therefore on the evidence the Claimant is entitled to 34 months at $118775 per month

This works out to be $4038350

Loss of Earnings - Claimants mother

[11] The Claimants mother is Gloria Griffin who worked at Amory Enterprises for a weekly wage

of $386002 The amount of $2556200 with respect to the loss of wages during the time

when she had to assist the Claimant in her helpless condition Such assistance is

addressed by the Claimant in her witness statement

1 See Perestrello ECompania v United Paint Co Ltd [1969]3 ALL ER 478 2 Core Bundle of Documents - Exhibit TD1 (V)

3

[12] The period claimed is 1st January 2011 to 17th February 2012 which is long after the initial

events both locally and in Trinidad3 Instead the Court calculates loss of earnings for the

same period as the Claimant being 19th March 2007 to 23rd November 2009 - a total of

136 weeks This amounts to $5249600

Medical Expenses

[13] The particulars given under this sub-head are as follows

(a) Loss of clothing $40000

(b) Medical Expenses (St Kitts) $138600

(c) Accommodation (Trinidad) $630450

(d) Medical expenses (Trinidad) $11880000

(e) Two (2) days spent in IN France General Hospital $50000

(n Transportation to and from the hospitalshy

152 days x$4000 $608000

(g) Massage Therapy 0607 - 1008

74 massages x $65 $481000

(h) Massage Therapy 1108 - 1109

74 massages x $75 $1282500

(i) Massages Therapy 1109 -1209

9 massages x $65 $58500

0) Equipment $57900

(k) Aids and Appliances $60000

(m) Pampers and Wipes

June 07 - Feb 17 2012

57 months x$270 $1539000

(n) Medicare cream June 07 - Feb 17th 2012

-171 weeks x $50 $855000

31t is to be noted that the schedule of Special Damages was fled on 19th January 2012 but loss of earnings is up to the date of 12th February 2012

4

(0) Medicated soap and powder

June 07 - Feb 17th 2012 -171 weeks x $70 $1197000

(p) Disinfectant June 07 - Feb 17 2012

171 weeks x $70 $1197000

(q) Nurse to change catheter

June 07 - Feb 17 2012 -171 weeks x $30 $513000

(r) Catheters - June 07 - Feb 17 2012

44 weeks x $1882 $82800

(s) Urine bags June 07 - Feb 172012

57 months x $2352 $134064

(t) Antibiotics June 2007 - Feb 17 2012

44 weeks x $100 $440000

(u) Medical Report (Dr Jeffers) $50000

(v) Medical Report (Dr Lawrence Rawlins) $150000

TOTAL $20594429

Reasoning

[14] There can be no doubt that the items claimed for purposes of special damages are

common to a person who has become permanently paraplegic And as mentioned before

the Claimant has filed extensive documentation to support her claim However in some

respect the documentation is somewhat unsatisfactory and will be dealt with in due course

[15] The Claimant herself in her witness statement alludes to this fact This is the relevant part

of her evidence

24 I have been shown the schedule of special damages prepared in this claim from the information provided by me I can confirm that the items costs set out in the schedule were incurred by me or on my behalf as a direct result of the accident Some of the expenses are ongoing I refer to a copy of these receipts and invoices marked TD1

25 I am unable to locate receipts for my loss of clothing aids equipment and travel expenses However I have been able to recall the costs of these items I refer to the document marked TD2 attached to this statement

5

[16] Although with respect to special damages strict proof is required the Court can accept that

with respect to minor items purchased in the past proof may be difficult On the other hand

the Claimant make mention of inability to find receipts for travel expenses but again this is

not fatal as the fact of travel can be inferred from the general context of the incident and the

medical treatment both in St Kitts and Trinidad

[17] The claims for medicated cream soap powder and disinfectant are weakened by the fact

that no supplier is named and the amounts claimed are in someones handwriting But as

indicated before these items are common and necessary in the context paraplegia

[18] On the evidence therefore the Court is satisfied that the Claimant is entitled to the

$20960750 in special damages for medical expenses for the period 18th March 2007 to

19th March 2010 is a total of 34 months plus $4038350 and $5249600 for loss of

earnings of the Claimant mother

General Damages

[19] In the sphere of general damages multiplier and multiplicand are of central importance

And for this reason it is necessary to elaborate thereon

Multiplier and Multiplicand

[20] In plain terms the multiplier is a quantity by which a given number is to be multiplied It is

central in the award of damages that the Claimants age and working life form the basis for

arriving at the multiplier4

[21] In this connection the following guidelines were enunciated in Alphonse v Ramnauth5

In determining the multiplier a Court should be mindful that it is assessing general and not special damages That it is evaluating prospects are that it is a once for all and final assessment It must take into account the many contingencies vicissitudes and imponderables of life It must be remembered that the plaintiff is getting a lump sum instead of several smaller sums spread over the years and that

4 See for example Moriarty v McCarthy [1978]2 All ER 213 - paraplegic of 24 years givens a multiplier of 15 Hunter v Severs

t1994]Civil Appeal No 1 of 1996 (unreported) British Virgin Islands

6

the award is intended to compensate the plaintiff for the money he would have eamed during his normal working life but for the accident

[22] It is considered that the multiplier arrived at in Fenton Auguste v Francis Neptune6 is in

total alignment with this case in that the ages are identical being both the time of the

accident and the medical consequences were the same permanent spinal injuries to the

spinal cord with certain secondary consequences

[23] In the Fenton Auguste case the Court of Appeal treated the appellant as having a working

life of up to 65 years and fixed the multiplier at 18

Multiplicand

[24] As regards the multiplicand the following principle was laid down in Cookson v Knowles7

that in arriving at that figure the basis should be the least amount the Claimant would have

earned if she had continued to work without being injured

[251 The uncontradicted evidence is that the Claimant earned based on regular hours $118775

per month8

[26] In sum therefore for the purposes of this case the multiplier is 18 and the sum of

$1425300 represents the multiplicand

[27] Central to the assessment of damages is the nature and extent of the injuries suffered by

the Claimant The sources of this evidence are the medical reports of Dr Cameron

Wilkinson and Dr Peter Poon-King

[28] Dr Cameron Wilkinsons Report says in part as follows

Significant findings were bull Paraplegia with sensory level of T1 T2 she was assessed as having a

spinal cord injury possible secondary dislocation of C7 on T1 She was treated with high dose of steroids for 24 hours with no improvement in symptoms

6 [2000J 56 WIR 229 7 [1979] AC556 8 See exhibit TD1 to the witness statement of Travia Douglas

7

CT Scan done revealed bull Fracture of the body and_of C7 bull Fracture of the traverse process and right laminae of T1

The family has been informed that the spinal cord injury secondary to dislocation of CT or T1 is permanent and therefore the resultant paraplegia is permanent

[29] Dr Peter Poon-King details the following

Ms Douglas has been an impotent for approximately the last eight weeks following spinal injuries which she reportedly sustained following a road traffic accident in St Kitts She has undergone cervical spine surgery (insertion of rods and screwsunlocking reduction) on 3407 and has grade 3 to 4 power in her upper limbs but unfortunately sensation below the waist There has been no change in the motor strength of her lower limbs which are paralyzed (ie grandeo) The (Prognosis for lower limb recovery is not good However the rehabilitation process continues and sitting balance is satisfactory She will not be able to transfer but it is anticipated that with continued exercise she will be able to achieve this She is able to feed herself and with help and grooming but it is dependant in other activities of daily living A urinary catheter is in situ and is changed monthly (mother has observed but has not yet changed the catheter herselD Bowel movements are spontaneous Skin condition is good Investigations have included MRI of cervical spine hb111 gd1 WBC and platelets as well as UECR and LFT all normal Blood group is Group APos Recommendation

1) Arrangements for acquisition of the following have been made bull Hospital bed bull Ripple mattress bull Transfer board bull Wheelchair

2) Reports will be obtained from bull Nurse in charge bull Physiotherapist bull Neurosurgeon (Mr Bedaysie)

Follow up in St Kitts will be done by Mr Bedaysie It would also be wise to have nursing follow up arranged re teaching mother about catheterization

Dr Peter Poon-King

[30] The recommendations of Dr Lawrence C Rawlings cover a wide spectrum of issues

relating to the Claimant In his Medical Summary the following is part of what he records

In order for her to maintain her physical and mental well-being several measures will have to be instituted These include

1) The purchase of a motorized wheelchair

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2) The use of a water mattress for decubitus ulcer prevention (the mattress to be replaced at intervals)

3) Bathroom railings to be installed 4) Construction of wheelchair ramps 5) Increasing the width of doorways to allow passage and turning of a

wheelchair All rooms and passages should be wide enough to provide an adequate turning radius for awheelchair

6) Continued physiotherapy (for strengthening of the upper extremities and to provide passive exercise for the lower extremities and to provide passive exercise for the lower extremities

7) Occupational therapy and job training for gainful employment either at home or at an outside location

8) Catheter care and replacement 9) General nutritional and dietary support 10) Care for her fecal incontinence (daily) 11) Although she is theoretically capable of becoming pregnant she no

sensation in the lower two-thirds of her body has no bladder control and is unlikely to engage in sexual intercourse pregnancy is a remote possibility

12) It is quite possible that she could have some elements or bouts of depression as a result of her general disability

[31] In the celebrated case of Cornilliac v St Louis9 Chief Justice Hugh Wooding enunciated

the following factors which must be taken into account in assessing general damages

a) The nature and extent of the injuries sustained b) The nature and gravity of the resulting physical disability c) The pain and suffering which had been endured d) The loss of amenities e) The extent to which consequently the persons primary prospects have been

materially affected

Nature and extent of injuries sustained

[32] The reports from the two doctors involved in treating the Claimant was quoted above so

that at this juncture it suffices rendered a paraplegic at age 21 In her witness statement the

Claimant said that the accident happened quickly and in the end she was on the grass and

could not move

Pain and suffering and loss of amenities

[33] These two factors are usually considered together because of their close relationship

9 [196517 WIR 491

9

Submissions

[34] Learned counsel for the Claimant Mr Courtney Abel in part submits the following

It is submitted that the case of Auguste v Neptune is directly applicable to the present case to pain and suffering and loss of amenities But it was decided some 15 years ago Based on Heil v Rankin [2000] 2 WRC 1173 uplift through February 2012 it is submitted that to keep pace with cost of living inflation rates and other changes since then an appropriate award under this heading would be $31223469 ($11502149 for pain and suffering and $19721320 for loss of amenities)10

[35] The case of Fenton Auguste v Francis Neptune involved 21 year old person who as a

result of an accident became paraplegic In the High Court the award for pain and suffering

and loss of amenities was $55000 but on appeal this was increased to $20000000

[36] Justice of Appeal Singh reasoned thus In computing this sum I considered $7500000 a

reasonable award for pain and suffering This involved consideration of the nature and

extent of the injuries sustained the appellants personal awareness of pain and his capacity

for suffering For loss of amenities I considered the sum of $12500000 reasonable This

involved consideration of the nature consideration of the nature and gravity of the resulting

physical disability the fact of the deprivation which is a substantial loss whether or not the

appellant is aware of it

[37] In Cletus Dolor v Alcide Antoine et aP1 a case involving a quadriplegic Madame Justice

HeriprashadmiddotCharles in considering the award of damages for pain and suffering and loss

amenities had this to say

34 Obviously damages for pain suffering are incapable of exact estimation and their assessment must necessarily be a matter of degree based on the facts of each case They must be assessed on the basis of giving reasonable compensation for the actual and prospective suffering

36 In terms of loss of amenities it is authoritatively settled that is in respect of the objective loss of amenities that the damages will be determined Hence loss of enjoyment of life and the hampering effect of the injuries in the carrying out of the normal social life and personal routine of life with the probable effect on the health and spirits of the injured party are all

10 The cases cited Augusta v Neptune [2000] 56 WIR 229 and Cletus Dolor v Alcide Antoine at al SLUHCV200110555 II Claim No SLUHCV200110555

10

2) The use of a water mattress for decubitus ulcer prevention (the mattress to be replaced at intervals)

3) Bathroom railings to be installed 4) Construction of wheelchair ramps 5) Increasing the width of doorways to allow passage and turning of a

wheelchair All rooms and passages should be wide enough to provide an adequate turning radius for awheelchair

6) Continued physiotherapy (for strengthening of the upper extremities and to provide passive exercise for the lower extremities and to provide passive exercise for the lower extremities

7) Occupational therapy and job training for gainful employment either at home or at an outside location

8) Catheter care and replacement 9) General nutritional and dietary support 10) Care for her fecal incontinence (daily) 11) Although she is theoretically capable of becoming pregnant she no

sensation in the lower two-thirds of her body has no bladder control and is unlikely to engage in sexual intercourse pregnancy is a remote possibility

12) It is quite possible that she could have some elements or bouts of depression as a result of her general disability

[31] In the celebrated case of Cornilliac v St Louis9 Chief Justice Hugh Wooding enunciated

the following factors which must be taken into account in assessing general damages

a) The nature and extent of the injuries sustained b) The nature and gravity of the resulting physical disability c) The pain and suffering which had been endured d) The loss of amenities e) The extent to which consequently the persons primary prospects have been

materially affected

Nature and extent of injuries sustained

[32] The reports from the two doctors involved in treating the Claimant was quoted above so

that at this juncture it suffices rendered a paraplegic at age 21 In her witness statement the

Claimant said that the accident happened quickly and in the end she was on the grass and

could not move

Pain and suffering and loss of amenities

[33] These two factors are usually considered together because of their close relationship

9 [196517 WIR 491

9

Submissions

[34] Learned counsel for the Claimant Mr Courtney Abel in part submits the following

It is submitted that the case of Auguste v Neptune is directly applicable to the present case to pain and suffering and loss of amenities But it was decided some 15 years ago Based on Heil v Rankin [2000] 2 WRC 1173 uplift through February 2012 it is submitted that to keep pace with cost of living inflation rates and other changes since then an appropriate award under this heading would be $31223469 ($11502149 for pain and suffering and $19721320 for loss of amenities)10

[35] The case of Fenton Auguste v Francis Neptune involved 21 year old person who as a

result of an accident became paraplegic In the High Court the award for pain and suffering

and loss of amenities was $55000 but on appeal this was increased to $20000000

[36] Justice of Appeal Singh reasoned thus In computing this sum I considered $7500000 a

reasonable award for pain and suffering This involved consideration of the nature and

extent of the injuries sustained the appellants personal awareness of pain and his capacity

for suffering For loss of amenities I considered the sum of $12500000 reasonable This

involved consideration of the nature consideration of the nature and gravity of the resulting

physical disability the fact of the deprivation which is a substantial loss whether or not the

appellant is aware of it

[37] In Cletus Dolor v Alcide Antoine et aP1 a case involving a quadriplegic Madame Justice

HeriprashadmiddotCharles in considering the award of damages for pain and suffering and loss

amenities had this to say

34 Obviously damages for pain suffering are incapable of exact estimation and their assessment must necessarily be a matter of degree based on the facts of each case They must be assessed on the basis of giving reasonable compensation for the actual and prospective suffering

36 In terms of loss of amenities it is authoritatively settled that is in respect of the objective loss of amenities that the damages will be determined Hence loss of enjoyment of life and the hampering effect of the injuries in the carrying out of the normal social life and personal routine of life with the probable effect on the health and spirits of the injured party are all

10 The cases cited Augusta v Neptune [2000] 56 WIR 229 and Cletus Dolor v Alcide Antoine at al SLUHCV200110555 II Claim No SLUHCV200110555

10

Submissions

[34] Learned counsel for the Claimant Mr Courtney Abel in part submits the following

It is submitted that the case of Auguste v Neptune is directly applicable to the present case to pain and suffering and loss of amenities But it was decided some 15 years ago Based on Heil v Rankin [2000] 2 WRC 1173 uplift through February 2012 it is submitted that to keep pace with cost of living inflation rates and other changes since then an appropriate award under this heading would be $31223469 ($11502149 for pain and suffering and $19721320 for loss of amenities)10

[35] The case of Fenton Auguste v Francis Neptune involved 21 year old person who as a

result of an accident became paraplegic In the High Court the award for pain and suffering

and loss of amenities was $55000 but on appeal this was increased to $20000000

[36] Justice of Appeal Singh reasoned thus In computing this sum I considered $7500000 a

reasonable award for pain and suffering This involved consideration of the nature and

extent of the injuries sustained the appellants personal awareness of pain and his capacity

for suffering For loss of amenities I considered the sum of $12500000 reasonable This

involved consideration of the nature consideration of the nature and gravity of the resulting

physical disability the fact of the deprivation which is a substantial loss whether or not the

appellant is aware of it

[37] In Cletus Dolor v Alcide Antoine et aP1 a case involving a quadriplegic Madame Justice

HeriprashadmiddotCharles in considering the award of damages for pain and suffering and loss

amenities had this to say

34 Obviously damages for pain suffering are incapable of exact estimation and their assessment must necessarily be a matter of degree based on the facts of each case They must be assessed on the basis of giving reasonable compensation for the actual and prospective suffering

36 In terms of loss of amenities it is authoritatively settled that is in respect of the objective loss of amenities that the damages will be determined Hence loss of enjoyment of life and the hampering effect of the injuries in the carrying out of the normal social life and personal routine of life with the probable effect on the health and spirits of the injured party are all

10 The cases cited Augusta v Neptune [2000] 56 WIR 229 and Cletus Dolor v Alcide Antoine at al SLUHCV200110555 II Claim No SLUHCV200110555

10

proper considerations to be taken into account Amongst the loss of amenities of life there are to be considered the injured persons inability to engage in indoor or outdoor games his dependence to a greater or lesser extent on the assistance of others in daily life the inability to copy by looking after caring for and rendering the accustomed services to a dependent his sexual impotence any prejudice to the prospects of marriage and his inability to lead the life he wants to lead before the injuries

[38] In the above-mentioned case the learned trial judge awarded $10000000 for pain and

suffering and $15000000 for loss of amenities At the same time the Claimant in the said

case Cletus Dolor was aquadriplegic and was 27 years old at the time of the accident

[39] In seeking to arrive at an award for pain and suffering and loss of amenities the Court

adopts the following dictum of Lord Hope of Craighead in Wells v Wells12

The amount of the award to be made for pain suffering and loss of amenity cannot be precisely calculated At that can be done is to award such sum within the broad criterion of what is reasonable and in line with similar awards in comparable cases as represents the Courts basic estimate of the plaintiffs damage

[40J The foregoing is not a new principle it merely reiterates an old principle in recent times

Thus the Court agrees with learned counsel that the case of Auguste v Neptune is on

point in many important respects The most important being the age of 21 and the resulting

paraplegic condition The latter facture renders Cletus case distinguishable in that the

Claimant in that case was a quadriplegic

[41] But it is common ground that Auguste v Neptune was decided some 15 years ago so that

the rate of inflation must be considered in making the award

[42] There is no direct evidence of the level of pain endured by Travia Douglas but she did say

in her evidence that after the brief moments of the accident she could not move which

turned out to be the loss of movement below the waist And she has remained that way

[43] In terms of loss of amenities the Claimants evidence is that

12 [1998J 3All ER 481

11

I was an active person living a normal life and I had a boyfriend with whom I enjoyed an active and normal sexual life and had way expectation to live a normal life working to take care of myself and eventually managing and eventually raising a family13 I also enjoyed going out and socializing with my friends I enjoyed participating in sports and watching footbaIl 14

[44] Further evidence is provided by Dr Derreck M Jeffers who says that the Claimants sexual

organs have not been affected however due to her condition she will not be able to enjoy

sexual activity

[45] The following is an extract from Dr Derreck MJeffers Report

With normal menstrual cycles and physical examination there seem to have been no impairment of her reproductive system However her paraplegia will significantly impair her voluntary involvement in sexual activity and enjoyment The presence of the in-dwelling transu catheter can also affect body perception Paraplegia has not been shown to negatively impair pregnancy outcome but there has been an increase of cesarean section15

[46] Though not stated by the learned doctor the condition of the Claimant by implication is

likely to affect her relationship with a person of the opposite sex and by prospects of

marriage

[47] In all the circumstances of the Claimants case and having regard to the award in

Alphonso v Neptune and 15 years that have elapsed since that award the Court will apply

a30 increase in keeping in normal rise in inflation

[48] On that basis the award for pain and suffering is rounded off at $1000000016 and the

award for loss of amenities is $1700000017bull

Loss of future earnings

Submissions

13 Witness statement filed 6111 January 2012 pursuant to an Order of the Court dated 28th October 2011 14 Witness statement filed on 3rd November 2008 pursuant to a Case Management Order dated 18th September 2008 15 See Claimants Medical and Architectural Reports at page 3 16 The actual calculation is $9750000 17 The actual calculation is $16250000

12

[49] Learned counsel for the Claimant places emphasis on the nature of the injuries and the

proposition that she is not likely to be re-employed

[50] After referring to the principles relating to the multiplier and multiplicand learned counsel

goes on to submit the following

Applying these principles to the present case the Claimant had a probably working life expectancy of up to 62-65 years averaging about 40 years more working life The Claimant was at the age of 21 when the incident occurred and is currently at the date of the trial at about 26 years As such following the assessment given by the learned Satrohan Singh JA in the 1997 appeal decision of Auguste v Neptune 56 WIR 229 the appellant suffered spinal injuries and was rendered paraplegic a multiplier of 18 was substituted for a multiplier of 15 It is therefore submitted that the appropriate multiplier applicable to the present case is 18

[51] It has already been determined that the multiplier in this on this case is 18 and the

multiplicand is $1425300 These variable yield damages for loss of future earnings of

$25655400

Cost of future care

Submissions

[52] The submissions on behalf of the Claimant on this head of general damages are these

62 The medical report of Dr Rawlings does not indicate that Ms Douglas will require the need for aqualified nurse but done to the extent of her injuries the Claimant will until the time of her passing require constant care and assistance

63 Someone has to be there to provide with her nutritional and dietary needs as well as help unto and out of wheelchair She would also need someone to look after her personal hygiene due to her lack of mobility and her urinary and fecal incontinence (to change and replace her urinary catheter once every month Her care assistance is presently being provided by her mother who has had to give up her full time job in order to provide the full time care which the Claimant needs and is supplemented to some extent by other family members

[53] The submissions end with the proposition that since the Claimants mother worked at

American Bakery at a monthly salary of $167267 now the primary catheter this should be

reflected in damages

I r

13

[54] The Court agrees And therefore using the multiplier of 18 multiplicand of $1425300 this

amounts to $25659000

Antibiotics

[55] It is submitted that the Claimant needs antibiotics to prevent any urinary infection which

cost EC$10000 every six weeks

[56] The Court accepts this submission and therefore for one year (52 weeks) the treatment

would be required 866 times multiplied by $10000 equals EC$86600 Using the multiplier

of 18 the amount is $1558800 This amount is awarded as damages

Pampers catheters and urine bags

[57] Pampers catheter and urine bags are mentioned in the medical evidence given the

Claimants circumstance

[58] According to the submissions and the evidence cost of papers is $27000 and $324000

annually Applying the multiplier of 18 the award is $5832000

[59] The cost of a catheter is $1882 every six weeks and annually the costs is $1882 x 866

yielding $1629800 And applying the multiplier of 18 the award of damages is $293364

[60] The monthly cost of a urine gas is $2352 and annually $28224 And applying the multiplier

of 18 the award of damages is $508032

Doctor visits physical and massage therapy

Doctor visits

[61] The only indication of doctor visits in contained in the medical report of Dr Peter Poon-King

in which it is stated that follow up in St Kitts will be done by Mr Bedaysie There is no

mention of a fee

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[62] In the submission a monthly fee of $3000 is advanced which amounts to $36000 annually

However the Court considers that this fee is entirely unrealistic given that Dr 8edaysie as

the evidence suggests that he is not a St Kitts or Nevis doctor and the amount to be

awarded is a one-off payment As such the Court considers that $100 monthly is more

appropriate Thus the annual amounts would be $120000 and applying the multiplier of 18

award is $2160000

Physical therapy

[63] There is evidence that a weekly fee of $3500 was charged in 2007 This is the amount

claimed which means that the annual fees will be $182000 and applying the multiplier of

18 - the amount is $3276000

Massage therapy

[64] A weekly fee of $7500 is claimed for massage therapy This differs from the fee of $6500

paid with respect to June 2007 and October 200818 However the Court accepts this fee

given the underlying principle that it is a single lump sum payment for the rest of the

Claimants life

[65J Using the figure of $75 the annual amount would be $390000 and when the multiplier of 18

is added the award is $7020000

Reconstruction of the Claimants home

[66] The submissions in this regard are that the estimate cost of the reconstruction was

assessed at $6952200 by Mr Oflyn Rogers Architectural Technologist On the other hand

the estimated cost of repairs and cosmetic upkeep every 5 years will be necessary It is

further submitted that when the multiplier of 18 is applied the repairs and cosmetic upkeeps

will be necessary 36 times at the rate of 20 of the replacement value of the home

modification costs This according to the submissions amounts to $5005589

18 See exhibit TD1 (E) Core Bundle of Documents However afee of $75 was paid during the period November - December 2008 and January - November 2009 schedule of special damages p53

15

[67] There is nothing in the evidence to contradict these submissions based on the estimates

[68] The total damages for reconstruction and repairs amounts to $6952207 plus $5005589shy

atotal of $11957796

Adjustable bed ripple mattress and pillows

[69] With respect to the adjustable bed the submission is for such a bed at a value of $916268

with a warranty of 5 years to be replaced 36 times in 18 years The damages sought

amounts to $3298565

[70] The adjustable (hospital) bed is a recommendation of Dr Peter Poon-King In this regard

the submission is that the cost is $150000 with a three year warranty to be replaced 6

times over the period of 18 years The total cost is $900000

[71) The Court accepts the submissions and the award is $900000

Pressure ulcer prevention

[72] There are submissions in relation to this item with the damages sought being $2096768

[73] The origin of this submission is unknown as it is not a recommendation of Dr Peter Poonshy

King This amount is therefore disallowed

Cervical spine support pillow

[74] According to the submission the cost of this item is $32245 with a 3 year warranty to be

replaced 6 times over the period of 18 years equals $2096796

[75] Although there is no recommendation with respect to this item the Court accepts that a

special pillow for a paraplegic is reasonable

[76] The award for the fitting cervical spine support pillow is $2096796

16

Motorized wheelchair

[77] This is one of the recommendation of Dr Lawrence C Rawlins which follows from the

Claimants condition

[78] Further according to Dr Peter Poon-King the Claimant has grade 3to 4 power in her upper

limbs after spine surgery

[79] According to the submission on this item the cost is $139652019 with a five year warranty

to be purchasedreplaced 33 times over 18 years equals $5027472

[80] There is also a submission on a pressure reducing cushion and cushion cover at a cost of

$13231320 with atwo year warranty to be purchased approximately 9 times over 18 years

[81] The Court has no difficulty with these two items and the award is $6218289

Mobility scooter handicapped minivan and patient lift

[82] It is common ground that the purpose in awarding damages is to put the Claimant back in

the position he or she would have been but for the event giving rise to liability21

[83J In her supplemental witness statement the Claimant addresses the items

Uc) A mobility scooter and its accessories before the accident I use to enjoy going in and out of stores either shopping or sightseeing to be able to just frequent places and areas of St Kitts I enjoyed so much and to be able to partake of these old habits and activities which one would take for granted would be so uplifting to me

(d) A patient lift this would assist my mother who is my primary caregiver in being able to lift me safely and appropriately and not strain herself ultimately preventing further injury to myself

(e) A handicapped equipped minivan currently my parents are unable to take me to places I have to call for a van service To be able to have a wheelchair accessible minivan that is redesigned to fit my personal needs and permanent setback would prevent me from feeling as depress[ed] as I do on some days because I am unable to accompany family and friends to neighbouring places

19 See quotation in Exhibit TD4 Statements Quotations and Invoices 20 Ibid 21 McGregor on Damages

17

[84] The Court is satisfied in the absence of any contrary evidence that the Claimant has made

out a case for patient lift and a handicapped equipped minivan but not for a mobility

scooter In this regard it is the reasoning of the Court that the motorized wheelchair can be

used to get in and out of stores and sightseeing with the help of the handicapped minivan

[85] The awards are as follows

(a) handicapped equipped minivan EC$13389924 with a 5 year warranty to be purchased 33 times over 18 years equals $4820372622

(b) patient lift $2028497 with a 2 year warranty to be purchasedreplaced 9 times over 18 years equals $18256472

Shipping costs

[86] The estimated cost of shipping a 40 ft container according to the submissions from the

United States is including validation is $1933085 There is however no documentation

[87] In the circumstances the principle that the Court must do the best it can in the face of

incomplete evidence by making the best it can given the circumstances23bull

[88] The award for shipping and validation is $2000000

[89] The total award of general damages is $183559675 made up as follows

a Pain and suffering and loss of amenities $27000000

b Claimants loss of future earnings $25655400

c Claimants future care $25659000

d Antibiotics $1558800

e Pampers catheters and urine bags $6633396

f Doctors visits $2160000

g Physical therapy $3276000

h Massage therapy $7020000

22 See quotations in Exhibit TD4 - Statements Quotations and Invoices 23 See Biggin Co v Permanite Ltd [1950] 2All ER 859 Ashcroft v Cubin [1971]3 All ER 1208

18

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i Reconstruction and repairs of the Claimants house $11957796

j Adjustable bed $900000

k Cervical spine support pillow $2096796

I Motorized wheelchair with pressure reducing cushion $6218289

m Handicapped equipped minivan $48203726

n Patient Lift $18256472

o Shipping costs $2000000

$183559675

Contributory negligence

[90J In his judgment on liability in this matter Mr Justice Francis Belle ruled that the Claimant

was contributorily negligent Unfortunately having heard the evidence and assessed the

witnesses the learned trial judge did not further rule on the extent of the Claimants

contributory negligence

[91] Contributory negligence is essentially carelessness on the part of the Claimant to take care

of herself which combines with the defendants negligence or breach of duty in bringing

about the Claimants damage It is a failure on the part of the person injured to take

reasonable care of himself in his own interest24

[92] In the case of E v H25 concerned in part contributory negligence in that the Claimant

whose vehicle was struck from behind was not wearing a seat belt and she suffered

severe whiplash Smelie CJ held that a reduction of 10 rather than the customary 15 to

20 was appropriate for the Claimants contributory negligence to reflect the debatable

extent to which the seat belt would have operated in the way designed and intended given

the fact that the drivers seat did separate from the chassis of the vehicle

24 See for example Jones v Livox Quarries Ltd [1952] 2Q 3608 615 25 [2000] CULR 347

19

[93] Also in Froom v Butcher26 the principle was re-stated in relation to the driver and front

seat passenger at the Court went on to rule that the damages should be reduced by 25

[94] Learned counsel for the Claimant has submitted that in this case the damages should be

reduced by 15 The Court does not agree for the following reasons 1 The accident

occurred in 2007 when the matter of wearing seat belt was common 2 The Claimant on

her own evidence for these proceedings does a lot of travelling in vehicles 3 There is no

evidence of any defect in the seat belt apparatus 4 The Claimant was an adult at the time

of the incident It is reasonable to infer that the 1st Defendant developed great speed

between the Marriott Hotel and the scene of the accident given the events that ensued

Therefore the Claimant should have taken steps to safeguard herself

[95] It is the determination of the Court that the damages should be reduced by 20

Liability to pay damages

[96] The result of the trial on liability in this matter is that the Court determined that the 1st and

3rd Defendants were liable in negligence At that stage the 5th Defendant was not a party to

the proceedings However on the application by the Claimant for an interim payment

which was successful Nagico was added to the proceedings as the 5th Defendant and

undertook to pay the sum of $23100000 to the Claimant which was in fact paid by Nagico

5th[97] The Court draws the reasonable inference that the payment by the Defendant

acknowledges this execution of a policy of insurance with the 3rd Defendant the owner of

one of the vehicles involved in the accident

[98] It is some importance to note that following the directions for the filing of submissions given

by this Court on 28th October 2011 no submissions were filed by the 5th Defendant And it

is of further importance to note that on 18th May 2012 the 5th Defendant made application to

be removed from proceedings The application was denied Even further at all Chamber

26 [1976] OB 286

20

hearings with one exception27 leading up to directions for assessment Nagico

represented by learned counsel Mr Denzil Hinds appeared amicus until it was joined as a

party to the said proceedings Plus there were no application by the 5th Defendant after it

was made a party to the proceedings except to be removed as a party

3rd[99] In all the circumstances it is the determination of the Court that the 1st and 5th

Defendants are jointly and severally liable to pay the damages to the Claimant

Interest

Special Damages

[100] Interest on the special damages shall be at a rate of 3 per annum from the date of the

incident being 18th March 2007 to 23rd November 2009 - the date of the commencement of

the trial

General Damages

[101] Interest at the rate of 6 per annum is awarded on the damages of $27000000 for pain

and suffering and loss of amenities less 20 from the date of the service of the claim form

being 26th June 2008 to the date of the commencement of the trial- 23rd November 2009

[102] No interest is awarded on any of the other head of general damages

Costs

[103] The Claimant is entitled to her costs to be calculated in accordance with Part 655 of CPR

2000

ORDER

[104] IT IS HEREBY ORDERED AND DECLARED as follows

1 The Claimant is awarded

Special Damages

27 Nagico did not appear at the Chamber hearing on 271h May 2011

21

----------------------

a Loss of earnings - Claimant $4038350

b Loss of earnings - Claimants mother $5249600

c Medical expenses $20960750

$30248700

General Damages

a Pain and suffering and loss of amenities $27000000

b Claimants loss of future earnings $25655400

c Claimants future care $25659000

d Antibiotics $1558800

e Pampers catheters and urine bags $6633396

f Doctors visits $2160000

g Physical therapy $3276000

h Massage therapy $7020000

i Reconstruction and repairs of the Claimants house $11957796

j Adjustable bed $900000

k Cervical spine support pillow $2096796

I Motorized wheelchair with pressure reducing cushion $6218289

m Handicapped equipped minivan $48203726

n Patient Lift $18256472

o Shipping costs $2000000

$188595675

2 The damages awarded to the Claimant shall be reduced by 20 on account of the

Claimants contributory negligence Thus quantum of special damages of

$30248700 is reduced to $24198960 and the general damages of $188595675

to $150876540

22

3 Interest on the amounts awarded at special damages shaU bear interest at the rate

of 3 per annum from the date of the incident being 18th March 2007 to 23rd

November 2009 the commencement of the trial

4 Interest on the award of $27000000 less 20 being $21600000 for pain and

suffering and loss of amenities shall be at the rate of 6 per annum from the date

of the service of the claim form being 26th June 2008 to 23rd November 2009 being

the date of the commencement of the trial

5 No interest is awarded on the other heads of general damages

6 The Claimant is entitled to her costs to be calculated in accordance with Part 655

of CPR 2000

Errol LThomas High Court Judge [Ag]

Addendum

The documentation to support some of the heads of general damages are wholly inadequate in

some instances For instance with respect to the matter of antibiotics the invoice is in someones

handwriting rather than an invoice from a pharmacy Same applies to the items such as pampers

and urine bags The invoice is also in someones handwriting What has saved the day for the

Claimant are the recommendations of Dr Peter Poon-King and especially those of Dr Lawrence

Rawlins

The Court notes that the items such as a minivan in being imported from the United States and

presently it was a left had drive This is likely to create serious problems to get the wheelchair in

and out given the legal requirement for vehicles to drive on the left side of the road

23